District Court May Categorically Reject Crack Guidelines Based Solely on Policy Disagreement, Even Without Individual Mitigating Circumstances

You thought it was already clear from Kimbrough that a district court may categorically reject the crack guidelines based solely on the court's policy disagreement with the crack/powder ratio? So did a majority of the Supreme Court, hence this summary reversal of the Eighth Circuit's contrary understanding of Kimbrough.

In this case, Spears was convicted of participating in a large-scale crack and powder cocaine conspiracy. The district judge thought the then-100:1 crack/powder ratio was excessive, so he recalculated the guidelines using a 20:1 ratio and ultimately sentenced Spears to the mandatory minimum of 20 years' imprisonment. On cross-appeal, the Government argued that the district court could not simply subsitute its own ratio for the Guidelines' ratio. The Eighth Circuit agreed, and vacated the sentence. Spears petitioned for cert, and the Supreme Court GVR'ed for reconsideration in light of Kimbrough. The Eighth Circuit again vacated the sentence, holding, inexplicably, that the district court could not categorically reject the Guidelines' ratio and replace it with a 20:1 ratio.

Spears again sought cert, with the result being this summary reversal that essentially says, "Remember Kimbrough? We meant it." The Court made crystal clear that "district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines[,]" adopting the "correct interpration of [Kimbrough] . . . offered by the dissent in Spears II:

"The Court thus established that even when a particular defendant in a crack cocaine case presents no special mitigating circumstances—no outstanding service to country or community, no unusually disadvantaged childhood, no overstated criminal history score, no post-offense rehabilitation—a sentencing court may nonetheless vary downward from the advisory guideline range. The court may do so based solely on its view that the 100-to-1 ratio embodied in the sentencing guidelines for the treatment of crack cocaine versus powder cocaine creates ‘an unwarranted disparity within the meaning of §3553(a),’ and is ‘at odds with §3553(a).’ The only fact necessary to justify such a variance is the sentencing court’s disagreement with the guidelines—its policy view that the 100-to-1 ratio creates an unwarranted disparity." 533 F. 3d, at 719 (opinion of Colloton, J.) (citations omitted).

Justice Kennedy would have granted cert and set the case for oral argument, rather than summarily reversing the Eighth Circuit. Justice Thomas dissented without explanation. Chief Justice Roberts, joined by Justice Alito, dissented largely on his view that summary reversal was inappropriate given the lack of a circuit split on what he viewed as an issue "arguably distinct" from that in Kimbrough (whether a district court can categorically adopt its own ratio, as opposed to simply determining that the 100:1 ratio would produce an excessive sentence in an individual case), and that the issue should be allowed to percolate in the lower courts before the Court steps in to settle their hash.

The majority responded that the Chief's characterization of Kimbrough's holding---requiring an individualized determination in addition to a policy disagreement before rejecting the crack Guidelines---"was [actually] the Government's position in Kimbrough, which did not prevail." And as for percolation,

The dissent says that "Apprendi, Booker, Rita, Gall, and Kimbrough have given the lower courts a good deal to digest over a relatively short period." True enough—and we should therefore promptly remove from the menu the Eighth Circuit’s offering, a smuggled-in dish that is indigestible. Finally, the dissent points out that other courts have followed the Eighth Circuit’s course, see United States v. Russell, 537 F. 3d 6, 11 (CA1 2008); United States v. Gunter, 527 F. 3d 282, 286 (CA3 2008). Both of those courts, like the Eighth Circuit, seized upon the language from Kimbrough quoted above in order to stand by the course they had adopted pre-Kimbrough—and in the case of the First Circuit, despite this Court’s having vacated and remanded, in light of Kimbrough, the prior First Circuit judgment which had established that course. See Pho v. United States, 552 U. S. ___ (2008). If the error of those opinions is, as we think, evident, they demonstrate the need to clarify at once the holding of Kimbrough.

(By the way, if it wasn't already obvious from the rest of the opinion, that paragraph makes it pretty easy to guess the author.)

Finally, note that, although the issue arises here in the context of the crack guidelines, the rationale of Kimbrough should apply with equal force to any other guidelines that lack an empircal basis, and there's lots of those.

And if you're interested in a behind-the-scenes look at the saga that was Spears, start here.

Wednesday, January 14, 2009

Failure to Report for Service of Sentence Is Not an ACCA "Violent Felony"

Addressing a circuit split, the Supreme Court held yesterday, per Justice Breyer, that the Illinois offense of failing to report for penal confinement is not a "violent felony" under the ACCA. As in Begay, the question was whether the offense "otherwise involves conduct that presents a serious potential risk of physical injury to another," the so-called "residual clause" of the "violent felony" definition.

Building on James and Begay, the Court explained that,

[c]onceptually speaking, the crime amounts to a form of inaction, a far cry from the "purposeful, 'violent,' and 'aggressive' conduct" potentially at issue when an offender uses explosives against property, commits arson, burgles a dwelling or residence, or engages in certain forms of extortion. While an offender to fails to report must of course be doing something at the relevant time, there is no reason to believe that the something poses a serious potential risk of physical injury. To the contrary, an individual who fails to report would seem unlikely, not likely, to call attention to his whereabouts by simultaneously engaging in additional violent and unlawful conduct.

(cites failed to report for service in block quote).

In so holding, the Court rejected as "beside the point" the Government's argument "that a failure to report reveals the offender's special, strong aversion to penal custody." Instead, "[t]he question is whether such an offender is significantly more likely than others to attack, or physically to resist, an apprehender, thereby producing a 'serious potential risk of physical injury.'"

And on that point, we've got data. A Sentencing Commission analysis of the application of the escape guidline revealed that, out of 160 failures to report that were sentenced in 2006 and 2007, none involved violence and only 5 involved armed defendants. "The upshot is that the study strongly supports the intuitive belief that failure to report does not involve a serious potential risk of physical injury." (The Government managed to dig up three reported cases from a period of 30 years in which individuals who failed to report shot at pursuing officers. The Court viewed that as consistent with the Commission data, given the larger data set.)

Justice Alito, joined by Justice Thomas, wrote a separate opinion concurring in the judgment only. Although willing to accept Begay as a matter of stare decisis (and because of the special force the doctrine carries in the statutory construction arena), they still think that decision is irreconcilable with the text of the residual clause. Alito also opines that the Taylor/Shepard categorical approach has made the "ACCA's residual clause . . . nearly impossible to apply consistently[,]" and suggests that Congress should ditch the residual clause in favor of a longer laundry list of enumerated offenses. Moreover, Alito apparently also favors jettisoning the Taylor/Shepard categorical approach not just for the residual clause, but for enumerated offenses as well. And that makes one wonder why Thomas joined Alito's opinion in its entirety, given that Thomas expressed the opinion in Shepard that going beyond the categorical approach to consider the actual facts of prior offenses would violate the constitution. Or perhaps that means I'm mistaken about Alito's position on the categorical approach.

Thursday, January 08, 2009

As this case nicely illustrates, relevant conduct liability is broad, but not unlimited, and must be supported by reliable evidence. But perhaps more importantly, the case shows that a sentence may be vacated due to a guidelines calculation error---a "significant procedural error" according to Gall---even though the defendant received a downward departure to a point falling within what would have been the correctly calculated range.

Ekanem, who owned and operated a medical supplies company, "engaged in a fraudulent scheme to provide patients with motorized scooters while billing Medicare for more expensive motorized wheelchairs." For that, he was convicted of five counts of health care fraud, in violation of 18 U.S.C. § 3147.

In determining the Guidelines loss-amount at sentencing, the district court found Ekanem responsible not only for the losses he directly caused, but also for the losses caused by a similar scheme orchestrated by the man who, among other things, helped Ekanem set up his supply business:

Here, the district court found that Ekanem entered into “a jointly undertaken criminal activity with Mendus Medical which is owned by Mr. Usanga.” Thus, the court determined that the financial losses caused by Mendus Medical were relevant conduct attributable to Ekanem and increased Ekanem’s offense level accordingly. . . . The government points to the following record evidence in support of the district court’s finding: (1) Usanga helped Ekanem set up and establish Rooster; (2) Usanga allowed Ekanem to use Mendus Medical’s supplier number when Rooster’s was temporarily revoked; (3) Rooster issued checks to Usanga for “appreciation,” “finder’s fee,” and “assistance” totaling approximately $18,000; (4) Rooster and Mendus Medical used some of the same doctors in their schemes; and (5) on at least one occasion the two companies “swapped” Certificates of Medical Necessity (“CMN’s”).

Our review of these facts and the record as a whole persuades us that the district court erred in determining that Ekanem entered into a jointly undertaken criminal activity regarding Mendus Medical. At most, the evidence establishes that Usanga provided start-up and operational support to Rooster, for which Ekanem compensated Usanga with “appreciation” fees, and that Rooster and Mendus Medical ran similar schemes. However, there is no indication that Ekanem agreed to jointly undertake in the distinct business of Mendus Medical. There is no evidence that Ekanem assisted in the planning, provided material support, or shared in the profits of Mendus Medical. No payments were made from Mendus Medical to Ekanem. Moreover, the investigating agent specifically acknowledged that the government lacked any evidence that Ekanem was “in anyway responsible for the operation of Mendus or of Mr. Usanga.”

As a nearly identical example from the relevant conduct guideline's commentary explains, mere knowledge of another's identical criminal scheme is not sufficient to hold the defendant responsible for that other person's actions. Thus, the district court's finding was erroneous.

And now for the "perhaps more importantly" part that I mentioned at the beginning. The district court's findings produced an advisory Guidelines range of 121 to 151 months. Ekanem was the beneficiary of a downward departure to 120 months, which fell within the correctly calculated range of 97 to 121 months. So, no harm no foul, right? Wrong: "as we cannot 'discern from the record whether the sentencing judge would have imposed the same sentence had he been departing from the [properly calculated] range,' we are required to remand." (alteration in Ekanem). Or, to put it in Gall terms, the district court's erroneous Guidelines calculation was a "significant procedural error" that prevented the court of appeals from being able to review the substantive reasonableness of the sentence, thus requiring remand.